191 Ind. 251 | Ind. | 1921
Lead Opinion
On April 7, 1911, the city of Hammond annexed by ordinance contiguous unplatted territory pursuant to §8896 Burns 1914, Acts 1905 p. 383. There was an appeal to the circuit court pursuant to §8897 Burns 1914, Acts 1905 p. 383. On July 3, 1913, the circuit court rendered the following-judgment: “It is therefore considered, adjudged and decreed by the court, that the territory hereinabove described be, and the same is hereby annexed to said City of Hammond, and by agreement of all parties hereto duly entered in open court, it is now by the court ordered that said annexation shall not become effective until five years from this date, at which time said territory shall become and be a part of the said city of Hammond.
“It is further adjudged and decreed by the court that all of the costs of this proceeding be, and the same are hereby taxed against the said City of Hammond.” (Our italics for convenient reference hereafter.)
On December 3, 1917, proceedings were begun before the board of county commissioners for the incorporation of appellee town of Hessville. On January 9, 1918, the board ordered this incorporation. The territory so incorporated as the town of Hessville is exactly
By quo warranto relator sought to forfeit the charter of the town of Hessville and prevent the officers of that town from performing their functions and duties.
From.a judgment of the trial court denying this relief relator appeals. The questions arise on the motion for a new trial: (1) The decision is contrary to law. (2) The decision is not sustained by sufficient evidence.
Neither in the original briefs nor upon the oral argument of this cause was any question raised as to the propriety of the remedy by quo warranto; but since then amici curiae have intervened and by permission of court have filed briefs in which they claim that the proper remedy is by injunction. They rely upon Stultz v. State, ex rel. (1879), 65 Ind. 492. An examination of that case will disclose that the court expressly held that the corporate existence of the city of Huntington was not called in question by the information. This court there held that it appeared from the face of that information that the officers of the city of Huntington were exercising authority over territory which relator claimed was illegally annexed. This court reversed that case, with instructions to sustain a demurrer to the information upon the ground that it did not state a cause of - action within the purview and meaning of the clauses of §749, 2 R. S. 1876. (Now §1188 Burns 1914.)
Counsel for relator and for appellee have been diligent in presenting authorities, but no exact precedent has been called to our attention by them; nor have we been able to discover any by search.
It may be conceded that the court had no power to suspend the effect of this judgment. The court was authorized by §8897 Burns 1914, swpra, to annex or deny annexation. The question then is, What effect did the attempted postponement of the judgment have upon its validity? When that which refers to the postponing of annexation is stricken out, there is a proper and complete judgment annexing the territory to the city of Hammond. Because the court put more into this judgment than is authorized by law, does that destroy the valid part of the judgment? We think not. For the authorized part is separable from that which is unauthorized. The remonstrance filed in the circuit court against the ordinance of annexation suspended the operation of that ordinance until judgment was rendered.
We hold that the part of the judgment italicized was unauthorized, and we hold that it is separable from the authorized part of the judgment. In other words, by striking out the italicized words in the judgment, there is a valid judgment of annexation. The italicized words have no effect upon the judgment. What effect they may have upon the parties to the agreement, we need not here determine.
The judgment is reversed, with instructions to the trial court to sustain relator’s motion for a new trial.
Rehearing
On Petition for Rehearing.
Appellees contended in their original brief that the judgment herein was void, because the court did not specially find the facts indicated by §8897 Burns 1914, Acts 1905 p. 383. We failed to discuss this question in the original opinion.
So much of §8897 Burns 1914, supra, as is essential to understand the point is as follows: “Whenever such territory is annexed * * * as provided in the foregoing section, * * * by special ordinance * * *,
This section then provides, that the territory shall not be a part of the city pending the appeal; that the judgment of annexation shall particularly describe the ordinance; that the county clerk shall deliver a certified copy of the judgment to the city clerk; that, if annexation is denied, no further annexation proceedings shall be lawful for two years.
Counsel for appellees cite Freeman, Judgments (4th ed.) §123, as follows: “The jurisdiction exercised by courts of record is, in many cases, dependent upon special statutes conferring an authority in derogation of the common law, and specifying the manner in which
A part of the above section of Freeman, Judgments (4th ed.) §123, which counsel omit, is as follows:
“The doctrine that the judgments of courts of record are of any less force, or are to be subjected to any closer scrutiny, or that they are attended with any less liberal presumptions, when created by virtue of a special or statutory authority, than when rendered in the exercise of ordinary jurisdiction, has been repudiated in some of the states; and the reasons sustaining this repudiation have been stated with such clearness and force, as to produce the conviction that the doctrine repudiated has no foundation in principle, however strongly it may be sustained by precedent. In the first place, it is shown that the discrimination between courts of record and courts not of record ‘is founded upon considerations of the wisest policy, which are obvious to all. Courts of record are presided over by men of experience and learned in the law, assisted by counsel also of experience and learning, who, in the discharge of their duties to their clients, necessarily act as advisers of the court. Their proceedings are conducted with solemnity and deliberation, and in strict conformity with established modes, with which long experience has made the court and bar familiar, and above all, they are taken down and made a matter of record at or about the time they transpire. Of inferior courts, as a general rule, none of these things can be affirmed.’ In the second place it*261 is shown, that none of those reasons upon which the discrimination between different courts rests tends to justify any discrimination between different. proceedings, conducted by the same court; that whether a court proceeds according to the ‘course of the common law,’ or according to some authority conferred and some course prescribed by a statute, it is, in either case, presided over by the same judge, assisted by the same counsel and officers, and conducted with the same wisdom, caution and solemnity. In either case its proceedings are equally matters of record, and equally subject to fixed and well-understood laws. And finally, it is suggested that, as no reason has been given for regarding the same tribunal with different degrees of consideration, according to circumstances which seem not to affect its claims to our confidence, therefore all its adjudications, though arising out of the exercise of lawful jurisdiction conferred at different times, or from different but equally competent sources, should be subjected to similar rules and indulged with equal presumptions.”
When this matter is appealed to a circuit or superior court, the learning, the intelligence, the conscience of the judge have not departed- simply because it is a special proceeding. If they have departed, it is difficult to see how finding the facts specially would recall them. There is no appeal from the decision of thg circuit or superior court. If these courts, acting in this special matter, should be so arbitrary as to annex where there was no reason for annexation, or deny annexation where there was every reason for it, it does not appear to us that such a court would have any qualms of conscience to find specially all that is required by the statute.
Counsel in their petition for rehearing picture to us a veritable chamber of legal horrors as to the consequences of our decision in the matter of taxation, and confusion in the collection of moneys. We foresaw this and attempted to forestall some of it by the last paragraph in our original opinion. We are impressed by the confusion' in the situation but we are not abashed by it. The persons interested in this judgment stood by and acquiesced in it until about the time of the expiration of its anomalous postponement. We deny any responsibility for the consequences of this laches.
Petition for rehearing is overruled.